People Ex Rel. Bank Commissioners v. Bank of Mendocino County

SMITH, C.

Appeal from an order refusing motion of defendant to modify an injunction. The injunction affected by the motion was part of the judgment rendered March 10,1896, in a suit of the people against the defendant corporation, under section 11 of the Bank Commissioners’ Act, as amended March 26,1895. (Stats. 1895, p. 173.) The motion was made on two grounds, namely: the one, “that the judgment, ... by its terms, provides that it be operative only until the further order of the court”; the other, “that the said judgment, in so far as it restrains and enjoins . . . the . . . defendant bank, etc., is not warranted by the law and facts of the said case.” It is claimed by the appellants that the judgment in which the injunction was ordered is

“

an interlocutory order, and not a final judgment”; and the motion, with regard to both the grounds specified, proceeds on this assumption. Otherwise the appeal would not lie, or at least could not be sustained; for the time for appealing from the judgment has long since expired, and—assuming it to be final—it was not in the power of the court to modify it. (Code Civ. Proc., sec. 939, subds. 1, 3.)

On the other hand, even were the judgment

interlocutory,

and hence unappealable,—as not falling within the class of interlocutory judgments mentioned in subdivision 3 of the section,—it would not follow that it would be within the power of the court to modify it. (Code Civ. Proc., secs. 577, 936, 1908.) Possibly a judgment may be

final,

in the sense of the term as used in the sections cited, and yet hot

final

as the term is used in section 939. But, under the view we take of the case, it will be unnecessary to consider this aspect of the subject.

We are satisfied that the judgment entered in a case of this character is final in the sense of the term as used in subdivision 1 of section 939 of the Code of Civil Procedure, and therefore appealable. Such a judgment is, in effect, an adjudication that the defendant corporation is insolvent; that it is unsafe for it to continue business; that the property of the corporation—previously sequestered and in the hands of the commissioners—be delivered to the corporation for purposes of liquidation, to be administered by the directors, under the direc